To express the policy of the United States regarding the
United States relationship with Native Hawaiians and to provide a process for
the recognition by the United States of the Native Hawaiian governing
entity.

1.

Short title

This Act may be cited as the
Native Hawaiian Government
Reorganization Act of 2007.

2.

Findings

Congress finds that—

(1)

the Constitution
vests Congress with the authority to address the conditions of the indigenous,
native people of the United States;

(2)

Native Hawaiians,
the native people of the Hawaiian archipelago that is now part of the United
States, are indigenous, native people of the United States;

(3)

the United States
has a special political and legal relationship to promote the welfare of the
native people of the United States, including Native Hawaiians;

(4)

under the treaty
making power of the United States, Congress exercised its constitutional
authority to confirm treaties between the United States and the Kingdom of
Hawaii, and from 1826 until 1893, the United States—

(A)

recognized the
sovereignty of the Kingdom of Hawaii;

(B)

accorded full
diplomatic recognition to the Kingdom of Hawaii; and

(C)

entered into
treaties and conventions with the Kingdom of Hawaii to govern commerce and
navigation in 1826, 1842, 1849, 1875, and 1887;

(5)

pursuant to the
Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), the United
States set aside approximately 203,500 acres of land to address the conditions
of Native Hawaiians in the Federal territory that later became the State of
Hawaii;

(6)

by setting aside
203,500 acres of land for Native Hawaiian homesteads and farms, the Hawaiian
Homes Commission Act assists the members of the Native Hawaiian community in
maintaining distinct native settlements throughout the State of Hawaii;

(7)

approximately
6,800 Native Hawaiian families reside on the Hawaiian Home Lands and
approximately 18,000 Native Hawaiians who are eligible to reside on the
Hawaiian Home Lands are on a waiting list to receive assignments of Hawaiian
Home Lands;

(8)(A)

in 1959, as part of the
compact with the United States admitting Hawaii into the Union, Congress
established a public trust (commonly known as the ceded lands
trust), for 5 purposes, 1 of which is the betterment of the conditions
of Native Hawaiians;

(B)

the public trust consists of lands,
including submerged lands, natural resources, and the revenues derived from the
lands; and

(C)

the assets of this public trust have
never been completely inventoried or segregated;

(9)

Native Hawaiians
have continuously sought access to the ceded lands in order to establish and
maintain native settlements and distinct native communities throughout the
State;

(10)

the Hawaiian
Home Lands and other ceded lands provide an important foundation for the
ability of the Native Hawaiian community to maintain the practice of Native
Hawaiian culture, language, and traditions, and for the survival and economic
self-sufficiency of the Native Hawaiian people;

on November 23,
1993, Public Law 103–150 (107 Stat. 1510) (commonly known as the Apology
Resolution) was enacted into law, extending an apology on behalf of the
United States to the native people of Hawaii for the United States’ role in the
overthrow of the Kingdom of Hawaii;

(13)

the Apology
Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred
with the active participation of agents and citizens of the United States and
further acknowledges that the Native Hawaiian people never directly
relinquished to the United States their claims to their inherent sovereignty as
a people over their national lands, either through the Kingdom of Hawaii or
through a plebiscite or referendum;

(14)

the Apology
Resolution expresses the commitment of Congress and the President—

(A)

to acknowledge
the ramifications of the overthrow of the Kingdom of Hawaii;

(B)

to support
reconciliation efforts between the United States and Native Hawaiians;
and

(C)

to consult with
Native Hawaiians on the reconciliation process as called for in the Apology
Resolution;

(15)

despite the
overthrow of the government of the Kingdom of Hawaii, Native Hawaiians have
continued to maintain their separate identity as a single distinct native
community through cultural, social, and political institutions, and to give
expression to their rights as native people to self-determination,
self-governance, and economic self-sufficiency;

(16)

Native Hawaiians
have also given expression to their rights as native people to
self-determination, self-governance, and economic self-sufficiency—

(A)

through the
provision of governmental services to Native Hawaiians, including the provision
of—

(i)

health care
services;

(ii)

educational
programs;

(iii)

employment and
training programs;

(iv)

economic
development assistance programs;

(v)

children’s
services;

(vi)

conservation
programs;

(vii)

fish and
wildlife protection;

(viii)

agricultural
programs;

(ix)

native language
immersion programs;

(x)

native language
immersion schools from kindergarten through high school;

(xi)

college and
master’s degree programs in native language immersion instruction; and

(xii)

traditional
justice programs, and

(B)

by continuing
their efforts to enhance Native Hawaiian self-determination and local
control;

(17)

Native Hawaiians
are actively engaged in Native Hawaiian cultural practices, traditional
agricultural methods, fishing and subsistence practices, maintenance of
cultural use areas and sacred sites, protection of burial sites, and the
exercise of their traditional rights to gather medicinal plants and herbs, and
food sources;

(18)

the Native
Hawaiian people wish to preserve, develop, and transmit to future generations
of Native Hawaiians their lands and Native Hawaiian political and cultural
identity in accordance with their traditions, beliefs, customs and practices,
language, and social and political institutions, to control and manage their
own lands, including ceded lands, and to achieve greater self-determination
over their own affairs;

(19)

this Act
provides a process within the framework of Federal law for the Native Hawaiian
people to exercise their inherent rights as a distinct, indigenous, native
community to reorganize a single Native Hawaiian governing entity for the
purpose of giving expression to their rights as native people to
self-determination and self-governance;

(20)

Congress—

(A)

has declared that
the United States has a special political and legal relationship for the
welfare of the native peoples of the United States, including Native
Hawaiians;

(B)

has identified
Native Hawaiians as a distinct group of indigenous, native people of the United
States within the scope of its authority under the Constitution, and has
enacted scores of statutes on their behalf ; and

(C)

has delegated
broad authority to the State of Hawaii to administer some of the United States’
responsibilities as they relate to the Native Hawaiian people and their
lands;

(21)

the United
States has recognized and reaffirmed the special political and legal
relationship with the Native Hawaiian people through the enactment of the Act
entitled, An Act to provide for the admission of the State of Hawaii
into the Union, approved March 18, 1959 (Public Law 86–3; 73 Stat. 4),
by—

(A)

ceding to the
State of Hawaii title to the public lands formerly held by the United States,
and mandating that those lands be held as a public trust for 5 purposes, 1 of
which is for the betterment of the conditions of Native Hawaiians; and

(B)

transferring the
United States’ responsibility for the administration of the Hawaiian Home Lands
to the State of Hawaii, but retaining the exclusive right of the United States
to consent to any actions affecting the lands included in the trust and any
amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter
42) that are enacted by the legislature of the State of Hawaii affecting the
beneficiaries under the Act;

(22)

the United
States has continually recognized and reaffirmed that—

(A)

Native Hawaiians
have a cultural, historic, and land-based link to the aboriginal, indigenous,
native people who exercised sovereignty over the Hawaiian Islands;

(B)

Native Hawaiians
have never relinquished their claims to sovereignty or their sovereign
lands;

(C)

the United States
extends services to Native Hawaiians because of their unique status as the
indigenous, native people of a once-sovereign nation with whom the United
States has a special political and legal relationship; and

(D)

the special
relationship of American Indians, Alaska Natives, and Native Hawaiians to the
United States arises out of their status as aboriginal, indigenous, native
people of the United States; and

(23)

the State of
Hawaii supports the reaffirmation of the special political and legal
relationship between the Native Hawaiian governing entity and the United States
as evidenced by 2 unanimous resolutions enacted by the Hawaii State Legislature
in the 2000 and 2001 sessions of the Legislature and by the testimony of the
Governor of the State of Hawaii before the Committee on Indian Affairs of the
Senate on February 25, 2003, and March 1, 2005.

3.

Definitions

In this Act:

(1)

Aboriginal,
indigenous, native people

The term aboriginal, indigenous,
native people means people whom Congress has recognized as the original
inhabitants of the lands that later became part of the United States and who
exercised sovereignty in the areas that later became part of the United
States.

(2)

Adult
member

The term adult member means a Native Hawaiian
who has attained the age of 18 and who elects to participate in the
reorganization of the Native Hawaiian governing entity.

(3)

Apology
Resolution

The term Apology Resolution means Public
Law 103–150 (107 Stat. 1510), a Joint Resolution extending an apology to Native
Hawaiians on behalf of the United States for the participation of agents of the
United States in the January 17, 1893, overthrow of the Kingdom of
Hawaii.

(4)

Commission

The
term commission means the Commission established under section
7(b) to provide for the certification that those adult members of the Native
Hawaiian community listed on the roll meet the definition of Native Hawaiian
set forth in paragraph (10).

(5)

Council

The
term council means the Native Hawaiian Interim Governing Council
established under section 7(c)(2).

(6)

Indian program
or service

(A)

In
general

The term Indian program or service means any
federally funded or authorized program or service provided to an Indian tribe
(or member of an Indian tribe) because of the status of the members of the
Indian tribe as Indians.

(B)

Inclusions

The
term Indian program or service includes a program or service
provided by the Bureau of Indian Affairs, the Indian Health Service, or any
other Federal agency.

(7)

Indian
tribe

The term Indian tribe has the meaning given
the term in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b).

(8)

Indigenous,
native people

The term indigenous, native people
means the lineal descendants of the aboriginal, indigenous, native people of
the United States.

(9)

Interagency
Coordinating Group

The term Interagency Coordinating
Group means the Native Hawaiian Interagency Coordinating Group
established under section 6.

(10)

Native
Hawaiian

(A)

In
general

Subject to subparagraph (B), for the purpose of
establishing the roll authorized under section 7(c)(1) and before the
reaffirmation of the special political and legal relationship between the
United States and the Native Hawaiian governing entity, the term Native
Hawaiian means—

(i)

an
individual who is 1 of the indigenous, native people of Hawaii and who is a
direct lineal descendant of the aboriginal, indigenous, native people
who—

(I)

resided in the
islands that now comprise the State of Hawaii on or before January 1, 1893;
and

(II)

occupied and
exercised sovereignty in the Hawaiian archipelago, including the area that now
constitutes the State of Hawaii; or

(ii)

an
individual who is 1 of the indigenous, native people of Hawaii and who was
eligible in 1921 for the programs authorized by the Hawaiian Homes Commission
Act (42 Stat. 108, chapter 42) or a direct lineal descendant of that
individual.

(B)

No effect on
other definitions

Nothing in this paragraph affects the
definition of the term Native Hawaiian under any other Federal or
State law (including a regulation).

(11)

Native
Hawaiian Governing Entity

The term Native Hawaiian
Governing Entity means the governing entity organized by the Native
Hawaiian people pursuant to this Act.

(12)

Native
Hawaiian program or service

The term Native Hawaiian
program or service means any program or service provided to Native
Hawaiians because of their status as Native Hawaiians.

(13)

Office

The
term Office means the United States Office for Native Hawaiian
Relations established by section 5(a).

(14)

Secretary

The
term Secretary means the Secretary of the Interior.

(15)

Special
political and legal relationship

The term special political
and legal relationship shall refer, except where differences are
specifically indicated elsewhere in the Act, to the type of and nature of
relationship the United States has with the several federally recognized Indian
tribes.

4.

United States
policy and purpose

(a)

Policy

The
United States reaffirms that—

(1)

Native Hawaiians
are a unique and distinct, indigenous, native people with whom the United
States has a special political and legal relationship;

(2)

the United States
has a special political and legal relationship with the Native Hawaiian people
which includes promoting the welfare of Native Hawaiians;

(3)

Congress
possesses the authority under the Constitution, including but not limited to
Article I, section 8, clause 3, to enact legislation to address the conditions
of Native Hawaiians and has exercised this authority through the enactment
of—

(A)

the Hawaiian
Homes Commission Act, 1920 (42 Stat. 108, chapter 42);

(B)

the Act entitled
An Act to provide for the admission of the State of Hawaii into the
Union, approved March 18, 1959 (Public Law 86–3, 73 Stat. 4);
and

(C)

more than 150
other Federal laws addressing the conditions of Native Hawaiians;

(4)

Native Hawaiians
have—

(A)

an inherent right
to autonomy in their internal affairs;

(B)

an inherent right
of self-determination and self-governance;

(C)

the right to
reorganize a Native Hawaiian governing entity; and

(D)

the right to
become economically self-sufficient; and

(5)

the United States
shall continue to engage in a process of reconciliation and political relations
with the Native Hawaiian people.

(b)

Purpose

The
purpose of this Act is to provide a process for the reorganization of the
single Native Hawaiian governing entity and the reaffirmation of the special
political and legal relationship between the United States and that Native
Hawaiian governing entity for purposes of continuing a government-to-government
relationship.

5.

United States
Office for Native Hawaiian Relations

(a)

Establishment

There
is established within the Office of the Secretary, the United States Office for
Native Hawaiian Relations.

(b)

Duties

The
Office shall—

(1)

continue the
process of reconciliation with the Native Hawaiian people in furtherance of the
Apology Resolution;

(2)

upon the
reaffirmation of the special political and legal relationship between the
single Native Hawaiian governing entity and the United States, effectuate and
coordinate the special political and legal relationship between the Native
Hawaiian governing entity and the United States through the Secretary, and with
all other Federal agencies;

(3)

fully integrate
the principle and practice of meaningful, regular, and appropriate consultation
with the Native Hawaiian governing entity by providing timely notice to, and
consulting with, the Native Hawaiian people and the Native Hawaiian governing
entity before taking any actions that may have the potential to significantly
affect Native Hawaiian resources, rights, or lands;

(4)

consult with the
Interagency Coordinating Group, other Federal agencies, and the State of Hawaii
on policies, practices, and proposed actions affecting Native Hawaiian
resources, rights, or lands; and

(5)

prepare and
submit to the Committee on Indian Affairs and the Committee on Energy and
Natural Resources of the Senate and the Committee on Resources of the House of
Representatives an annual report detailing the activities of the Interagency
Coordinating Group that are undertaken with respect to the continuing process
of reconciliation and to effect meaningful consultation with the Native
Hawaiian governing entity and providing recommendations for any necessary
changes to Federal law or regulations promulgated under the authority of
Federal law.

(c)

Applicability
to department of defense

This section shall have no applicability
to the Department of Defense or to any agency or component of the Department of
Defense, but the Secretary of Defense may designate 1 or more officials as
liaison to the Office.

6.

Native Hawaiian
Interagency Coordinating Group

(a)

Establishment

In
recognition that Federal programs authorized to address the conditions of
Native Hawaiians are largely administered by Federal agencies other than the
Department of the Interior, there is established an interagency coordinating
group to be known as the Native Hawaiian Interagency Coordinating
Group.

(b)

Composition

The
Interagency Coordinating Group shall be composed of officials, to be designated
by the President, from—

The Department of the Interior shall serve as the lead
agency of the Interagency Coordinating Group.

(2)

Meetings

The
Secretary shall convene meetings of the Interagency Coordinating Group.

(d)

Duties

The
Interagency Coordinating Group shall—

(1)

coordinate
Federal programs and policies that affect Native Hawaiians or actions by any
agency or agencies of the Federal Government that may significantly or uniquely
affect Native Hawaiian resources, rights, or lands;

(2)

consult with the
Native Hawaiian governing entity, through the coordination referred to in
section 6(d)(1), but the consultation obligation established in this provision
shall apply only after the satisfaction of all of the conditions referred to in
section 7(c)(6); and

(3)

ensure the
participation of each Federal agency in the development of the report to
Congress authorized in section 5(b)(5).

(e)

Applicability
to Department of Defense

This section shall have no applicability
to the Department of Defense or to any agency or component of the Department of
Defense, but the Secretary of Defense may designate 1 or more officials as
liaison to the Interagency Coordinating Group.

7.

Process for the
reorganization of the Native Hawaiian Governing Entity and the reaffirmation of
the special political and legal relationship between the United States and the
Native Hawaiian Governing Entity

(a)

Recognition of
the Native Hawaiian Governing Entity

The right of the Native
Hawaiian people to reorganize the single Native Hawaiian governing entity to
provide for their common welfare and to adopt appropriate organic governing
documents is recognized by the United States.

(b)

Commission

(1)

In
general

There is authorized to be established a Commission to be
composed of 9 members for the purposes of—

(A)

preparing and
maintaining a roll of the adult members of the Native Hawaiian community who
elect to participate in the reorganization of the single Native Hawaiian
governing entity; and

(B)

certifying that
the adult members of the Native Hawaiian community proposed for inclusion on
the roll meet the definition of Native Hawaiian in section 3(10).

(2)

Membership

(A)

Appointment

(i)

In
general

Not later than 180 days after the date of enactment of
this Act, the Secretary shall appoint the members of the Commission in
accordance with subparagraph (B).

(ii)

Consideration

In
making an appointment under clause (i), the Secretary may take into
consideration a recommendation made by any Native Hawaiian organization.

(B)

Requirements

Each
member of the Commission shall demonstrate, as determined by the
Secretary—

(i)

not
less than 10 years of experience in the study and determination of Native
Hawaiian genealogy; and

(ii)

an
ability to read and translate into English documents written in the Hawaiian
language.

(C)

Vacancies

A
vacancy on the Commission—

(i)

shall not affect
the powers of the Commission; and

(ii)

shall be filled
in the same manner as the original appointment.

(3)

Expenses

Each
member of the Commission shall be allowed travel expenses, including per diem
in lieu of subsistence, at rates authorized for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code, while away from
their homes or regular places of business in the performance of services for
the Commission.

(4)

Duties

The
Commission shall—

(A)

prepare and
maintain a roll of the adult members of the Native Hawaiian community who elect
to participate in the reorganization of the Native Hawaiian governing entity;
and

(B)

certify that each
of the adult members of the Native Hawaiian community proposed for inclusion on
the roll meets the definition of Native Hawaiian in section 3(10).

(5)

Staff

(A)

In
general

The Commission may, without regard to the civil service
laws (including regulations), appoint and terminate an executive director and
such other additional personnel as are necessary to enable the Commission to
perform the duties of the Commission.

(B)

Compensation

(i)

In
general

Except as provided in clause (ii), the Commission may fix
the compensation of the executive director and other personnel without regard
to the provisions of chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions and General
Schedule pay rates.

(ii)

Maximum rate
of pay

The rate of pay for the executive director and other
personnel shall not exceed the rate payable for level V of the Executive
Schedule under section 5316 of title 5, United States Code.

(6)

Detail of
Federal Government employees

(A)

In
general

An employee of the Federal Government may be detailed to
the Commission without reimbursement.

(B)

Civil service
status

The detail of the employee shall be without interruption
or loss of civil service status or privilege.

(7)

Procurement of
temporary and intermittent services

The Commission may procure
temporary and intermittent services in accordance with section 3109(b) of title
5, United States Code, at rates for individuals that do not exceed the daily
equivalent of the annual rate of basic pay prescribed for level V of the
Executive Schedule under section 5316 of that title.

(8)

Expiration

The
Secretary shall dissolve the Commission upon the reaffirmation of the special
political and legal relationship between the Native Hawaiian governing entity
and the United States.

(c)

Process for the
reorganization of the Native Hawaiian Governing Entity

(1)

Roll

(A)

Contents

The
roll shall include the names of the adult members of the Native Hawaiian
community who elect to participate in the reorganization of the Native Hawaiian
governing entity and are certified to be Native Hawaiian as defined in section
3(10) by the Commission.

(B)

Formation of
roll

Each adult member of the Native Hawaiian community who
elects to participate in the reorganization of the Native Hawaiian governing
entity shall submit to the Commission documentation in the form established by
the Commission that is sufficient to enable the Commission to determine whether
the individual meets the definition of Native Hawaiian in section 3(10).

(C)

Documentation

The
Commission shall—

(i)

identify the
types of documentation that may be submitted to the Commission that would
enable the Commission to determine whether an individual meets the definition
of Native Hawaiian in section 3(10);

(ii)

establish a
standard format for the submission of documentation; and

(iii)

publish
information related to clauses (i) and (ii) in the Federal Register.

(D)

Consultation

In
making determinations that each of the adult members of the Native Hawaiian
community proposed for inclusion on the roll meets the definition of Native
Hawaiian in section 3(10), the Commission may consult with Native Hawaiian
organizations, agencies of the State of Hawaii including but not limited to the
Department of Hawaiian Home Lands, the Office of Hawaiian Affairs, and the
State Department of Health, and other entities with expertise and experience in
the determination of Native Hawaiian ancestry and lineal descendancy.

(E)

Certification
and submittal of roll to Secretary

The Commission shall—

(i)

submit the roll
containing the names of the adult members of the Native Hawaiian community who
meet the definition of Native Hawaiian in section 3(10) to the Secretary within
two years from the date on which the Commission is fully composed; and

(ii)

certify to the
Secretary that each of the adult members of the Native Hawaiian community
proposed for inclusion on the roll meets the definition of Native Hawaiian in
section 3(10).

(F)

Publication

Upon
certification by the Commission to the Secretary that those listed on the roll
meet the definition of Native Hawaiian in section 3(10), the Secretary shall
publish the roll in the Federal Register.

(G)

Appeal

The
Secretary may establish a mechanism for an appeal for any person whose name is
excluded from the roll who claims to meet the definition of Native Hawaiian in
section 3(10) and to be 18 years of age or older.

(H)

Publication;
update

The Secretary shall—

(i)

publish the roll
regardless of whether appeals are pending;

(ii)

update the roll
and the publication of the roll on the final disposition of any appeal;
and

(iii)

update the roll
to include any Native Hawaiian who has attained the age of 18 and who has been
certified by the Commission as meeting the definition of Native Hawaiian in
section 3(10) after the initial publication of the roll or after any subsequent
publications of the roll.

(I)

Failure to
Act

If the Secretary fails to publish the roll, not later than 90
days after the date on which the roll is submitted to the Secretary, the
Commission shall publish the roll notwithstanding any order or directive issued
by the Secretary or any other official of the Department of the Interior to the
contrary.

(J)

Effect of
publication

The publication of the initial and updated roll shall
serve as the basis for the eligibility of adult members of the Native Hawaiian
community whose names are listed on those rolls to participate in the
reorganization of the Native Hawaiian governing entity.

(2)

Organization of
the Native Hawaiian Interim Governing Council

(A)

Organization

The
adult members of the Native Hawaiian community listed on the roll published
under this section may—

(i)

develop criteria
for candidates to be elected to serve on the Native Hawaiian Interim Governing
Council;

(ii)

determine the
structure of the Council; and

(iii)

elect members
from individuals listed on the roll published under this subsection to the
Council.

(B)

Powers

(i)

In
general

The Council—

(I)

may represent
those listed on the roll published under this section in the implementation of
this Act; and

(II)

shall have no
powers other than powers given to the Council under this Act.

(ii)

Funding

The
Council may enter into a contract with, or obtain a grant from, any Federal or
State agency to carry out clause (iii).

(iii)

Activities

(I)

In
general

The Council may conduct a referendum among the adult
members of the Native Hawaiian community listed on the roll published under
this subsection for the purpose of determining the proposed elements of the
organic governing documents of the Native Hawaiian governing entity, including
but not limited to—

(aa)

the
proposed criteria for citizenship of the Native Hawaiian governing
entity;

(bb)

the
proposed powers and authorities to be exercised by the Native Hawaiian
governing entity, as well as the proposed privileges and immunities of the
Native Hawaiian governing entity;

(cc)

the
proposed civil rights and protection of the rights of the citizens of the
Native Hawaiian governing entity and all persons affected by the exercise of
governmental powers and authorities of the Native Hawaiian governing entity;
and

(dd)

other issues
determined appropriate by the Council.

(II)

Development of
organic governing documents

Based on the referendum, the Council
may develop proposed organic governing documents for the Native Hawaiian
governing entity.

(III)

Distribution

The
Council may distribute to all adult members of the Native Hawaiian community
listed on the roll published under this subsection—

(aa)

a
copy of the proposed organic governing documents, as drafted by the Council;
and

(bb)

a
brief impartial description of the proposed organic governing documents;

(IV)

Elections

The
Council may hold elections for the purpose of ratifying the proposed organic
governing documents, and on certification of the organic governing documents by
the Secretary in accordance with paragraph (4), hold elections of the officers
of the Native Hawaiian governing entity pursuant to paragraph (5).

(3)

Submittal of
organic governing documents

Following the reorganization of the
Native Hawaiian governing entity and the adoption of organic governing
documents, the Council shall submit the organic governing documents of the
Native Hawaiian governing entity to the Secretary.

(4)

Certifications

(A)

In
general

Within the context of the future negotiations to be
conducted under the authority of section 8(b)(1), and the subsequent actions by
the Congress and the State of Hawaii to enact legislation to implement the
agreements of the 3 governments, not later than 90 days after the date on which
the Council submits the organic governing documents to the Secretary, the
Secretary shall certify that the organic governing documents—

(i)

establish the
criteria for citizenship in the Native Hawaiian governing entity;

(ii)

were adopted by
a majority vote of the adult members of the Native Hawaiian community whose
names are listed on the roll published by the Secretary;

(iii)

provide
authority for the Native Hawaiian governing entity to negotiate with Federal,
State, and local governments, and other entities;

(iv)

provide for the
exercise of governmental authorities by the Native Hawaiian governing entity,
including any authorities that may be delegated to the Native Hawaiian
governing entity by the United States and the State of Hawaii following
negotiations authorized in section 8(b)(1) and the enactment of legislation to
implement the agreements of the 3 governments;

(v)

prevent the sale,
disposition, lease, or encumbrance of lands, interests in lands, or other
assets of the Native Hawaiian governing entity without the consent of the
Native Hawaiian governing entity;

(vi)

provide for the
protection of the civil rights of the citizens of the Native Hawaiian governing
entity and all persons affected by the exercise of governmental powers and
authorities by the Native Hawaiian governing entity; and

(vii)

are consistent
with applicable Federal law and the special political and legal relationship
between the United States and the indigenous, native people of the United
States; provided that the provisions of Public Law 103–454, 25 U.S.C. 479a,
shall not apply.

(B)

Resubmission in
case of noncompliance with the requirements of subparagraph
(a)

(i)

Resubmission by
the Secretary

If the Secretary determines that the organic
governing documents, or any part of the documents, do not meet all of the
requirements set forth in subparagraph (A), the Secretary shall resubmit the
organic governing documents to the Council, along with a justification for each
of the Secretary’s findings as to why the provisions are not in full
compliance.

(ii)

Amendment and
resubmission of organic governing documents

If the organic
governing documents are resubmitted to the Council by the Secretary under
clause (i), the Council shall—

(I)

amend the organic
governing documents to ensure that the documents meet all the requirements set
forth in subparagraph (A); and

(II)

resubmit the
amended organic governing documents to the Secretary for certification in
accordance with this paragraph.

(C)

Certifications
deemed made

The certifications under paragraph (4) shall be
deemed to have been made if the Secretary has not acted within 90 days after
the date on which the Council has submitted the organic governing documents of
the Native Hawaiian governing entity to the Secretary.

(5)

Elections

On
completion of the certifications by the Secretary under paragraph (4), the
Council may hold elections of the officers of the Native Hawaiian governing
entity.

(6)

Reaffirmation

Notwithstanding
any other provision of law, upon the certifications required under paragraph
(4) and the election of the officers of the Native Hawaiian governing entity,
the special political and legal relationship between the United States and the
Native Hawaiian governing entity is hereby reaffirmed and the United States
extends Federal recognition to the Native Hawaiian governing entity as the
representative governing body of the Native Hawaiian people.

The
delegation by the United States of authority to the State of Hawaii to address
the conditions of the indigenous, native people of Hawaii contained in the Act
entitled An Act to provide for the admission of the State of Hawaii into
the Union approved March 18, 1959 (Public Law 86–3, 73 Stat. 4), is
reaffirmed.

(b)

Negotiations

(1)

In
general

Upon the reaffirmation of the special political and legal
relationship between the United States and the Native Hawaiian governing
entity, the United States and the State of Hawaii may enter into negotiations
with the Native Hawaiian governing entity designed to lead to an agreement
addressing such matters as—

(A)

the transfer of
lands, natural resources, and other assets, and the protection of existing
rights related to such lands or resources;

(B)

the exercise of
governmental authority over any transferred lands, natural resources, and other
assets, including land use;

(C)

the exercise of
civil and criminal jurisdiction;

(D)

the delegation of
governmental powers and authorities to the Native Hawaiian governing entity by
the United States and the State of Hawaii;

(E)

any residual
responsibilities of the United States and the State of Hawaii; and

(F)

grievances
regarding assertions of historical wrongs committed against Native Hawaiians by
the United States or by the State of Hawaii.

(2)

Amendments to
existing laws

Upon agreement on any matter or matters negotiated
with the United States, the State of Hawaii, and the Native Hawaiian governing
entity, the parties are authorized to submit—

(A)

to the Committee
on Indian Affairs of the Senate, the Committee on Energy and Natural Resources
of the Senate, and the Committee on Resources of the House of Representatives,
recommendations for proposed amendments to Federal law that will enable the
implementation of agreements reached between the 3 governments; and

(B)

to the Governor
and the legislature of the State of Hawaii, recommendations for proposed
amendments to State law that will enable the implementation of agreements
reached between the 3 governments.

(3)

Governmental
authority and power

Any governmental authority or power to be
exercised by the Native Hawaiian governing entity which is currently exercised
by the State or Federal Governments shall be exercised by the Native Hawaiian
governing entity only as agreed to in negotiations pursuant to section 8(b)(1)
of this Act and beginning on the date on which legislation to implement such
agreement has been enacted by the United States Congress, when applicable, and
by the State of Hawaii, when applicable. This includes any required
modifications to the Hawaii State Constitution in accordance with the Hawaii
Revised Statutes.

(c)

Claims

(1)

Disclaimers

Nothing
in this Act—

(A)

creates a cause
of action against the United States or any other entity or person;

(B)

alters existing
law, including existing case law, regarding obligations on the part of the
United States or the State of Hawaii with regard to Native Hawaiians or any
Native Hawaiian entity;

(C)

creates
obligations that did not exist in any source of Federal law prior to the date
of enactment of this Act; or

(D)

establishes
authority for the recognition of Native Hawaiian groups other than the single
Native Hawaiian Governing Entity.

(2)

Federal
sovereign immunity

(A)

Specific
purpose

Nothing in this Act is intended to create or allow to be
maintained in any court any potential breach-of-trust actions, land claims,
resource-protection or resource-management claims, or similar types of claims
brought by or on behalf of Native Hawaiians or the Native Hawaiian governing
entity for equitable, monetary, or Administrative Procedure Act-based relief
against the United States or the State of Hawaii, whether or not such claims
specifically assert an alleged breach of trust, call for an accounting, seek
declaratory relief, or seek the recovery of or compensation for lands once held
by Native Hawaiians.

(B)

Establishment
and retention of sovereign immunity

To effectuate the ends
expressed in section 8(c)(1) and 8(c)(2)(A), and notwithstanding any other
provision of Federal law, the United States retains its sovereign immunity to
any claim that existed prior to the enactment of this Act (including, but not
limited to, any claim based in whole or in part on past events), and which
could be brought by Native Hawaiians or any Native Hawaiian governing entity.
Nor shall any preexisting waiver of sovereign immunity (including, but not
limited to, waivers set forth in chapter 7 of part I of title 5, United States
Code, and sections 1505 and 2409a of title 28, United States Code) be
applicable to any such claims. This complete retention or reclaiming of
sovereign immunity also applies to every claim that might attempt to rely on
this Act for support, without regard to the source of law under which any such
claim might be asserted.

(C)

Effect

It
is the general effect of section 8(c)(2)(B) that any claims that may already
have accrued and might be brought against the United States, including any
claims of the types specifically referred to in section 8(c)(2)(A), along with
both claims of a similar nature and claims arising out of the same nucleus of
operative facts as could give rise to claims of the specific types referred to
in section 8(c)(2)(A), be rendered nonjusticiable in suits brought by
plaintiffs other than the Federal Government.

(3)

State
sovereignty immunity

(A)

Notwithstanding
any other provision of Federal law, the State retains its sovereign immunity,
unless waived in accord with State law, to any claim, established under any
source of law, regarding Native Hawaiians, that existed prior to the enactment
of this Act.

(B)

Nothing in this
Act shall be construed to constitute an override pursuant to section 5 of the
Fourteenth Amendment of State sovereign immunity held under the Eleventh
Amendment.

9.

Applicability of
certain Federal laws

(a)

Indian Gaming
Regulatory Act

(1)

The Native
Hawaiian governing entity and Native Hawaiians may not conduct gaming
activities as a matter of claimed inherent authority or under the authority of
any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et
seq.) or under any regulations thereunder promulgated by the Secretary or the
National Indian Gaming Commission.

(2)

The foregoing
prohibition in section 9(a)(1) on the use of Indian Gaming Regulatory Act and
inherent authority to game apply regardless of whether gaming by Native
Hawaiians or the Native Hawaiian governing entity would be located on land
within the State of Hawaii or within any other State or Territory of the United
States.

(b)

Taking land
into trust

Notwithstanding any other provision of law, including
but not limited to part 151 of title 25, Code of Federal Regulations, the
Secretary shall not take land into trust on behalf of individuals or groups
claiming to be Native Hawaiian or on behalf of the native Hawaiian governing
entity.

(c)

Real property
transfers

The Indian Trade and Intercourse Act (25 U.S.C. 177),
does not, has never, and will not apply after enactment to lands or lands
transfers present, past, or future, in the State of Hawaii. If despite the
expression of this intent herein, a court were to construe the Trade and
Intercourse Act to apply to lands or land transfers in Hawaii before the date
of enactment of this Act, then any transfer of land or natural resources
located within the State of Hawaii prior to the date of enactment of this Act,
by or on behalf of the Native Hawaiian people, or individual Native Hawaiians,
shall be deemed to have been made in accordance with the Indian Trade and
Intercourse Act and any other provision of Federal law that specifically
applies to transfers of land or natural resources from, by, or on behalf of an
Indian tribe, Native Hawaiians, or Native Hawaiian entities.

(d)

Single
governing entity

This Act will result in the recognition of the
single Native Hawaiian governing entity. Additional Native Hawaiian groups
shall not be eligible for acknowledgment pursuant to the Federal Acknowledgment
Process set forth in part 83 of title 25 of the Code of Federal Regulations or
any other administrative acknowledgment or recognition process.

(e)

Jurisdiction

Nothing
in this Act alters the civil or criminal jurisdiction of the United States or
the State of Hawaii over lands and persons within the State of Hawaii. The
status quo of Federal and State jurisdiction can change only as a result of
further legislation, if any, enacted after the conclusion, in relevant part, of
the negotiation process established in section 8(b).

(f)

Indian programs
and services

Notwithstanding section 7(c)(6), because of the
eligibility of the Native Hawaiian governing entity and its citizens for Native
Hawaiian programs and services in accordance with subsection (g), nothing in
this Act provides an authorization for eligibility to participate in any Indian
program or service to any individual or entity not otherwise eligible for the
program or service under applicable Federal law.

(g)

Native Hawaiian
programs and services

The Native Hawaiian governing entity and
its citizens shall be eligible for Native Hawaiian programs and services to the
extent and in the manner provided by other applicable laws.

10.

Severability

If any section or provision of this Act is
held invalid, it is the intent of Congress that the remaining sections or
provisions shall continue in full force and effect.

11.

Authorization of
appropriations

There are
authorized to be appropriated such sums as are necessary to carry out this
Act.